The Rise of Big Immigration Law
U.S. immigration law has always featured multiple paths to recognized membership in the U.S. polity: lawful entry at the outset, later legalization through deportation relief, regularly enacted legalization programs, and grants of asylum. The mushrooming of immigration policing strategies, however, threatens to narrow or even close these avenues to lawful status.
People are wrong about Donald Trump and immigration.
Trump’s presidential campaign explicitly targeted immigrants and immigrant communities of color. He promised to crack down on unauthorized entry and build a big border wall. He promised to implement mass detention to deter migration, and mass deportation of the millions of immigrants living in the United States without authorization. He said he would deport the “bad” immigrants, the dangerous and the criminal. His rhetoric painted Mexican and Muslim immigrants as criminals and terrorists, and immigrants in general as economic and cultural intruders. He promised to turn the tide from amnesty to enforcement. And as president, Trump has tried to follow through on all of these immigration campaign promises.
Trump’s Immigration Policies Are Not New
Where people go wrong is in assuming that this approach is something new. In fact, everything the Trump Administration is doing has been tried before.
Since the War on Drugs of the 1990s, the United States has been in the thrall of immigration policing strategies that rely heavily on large-scale detention and deportation. Congress expanded deportation grounds and swept away reasons to waive them. Before 1980, people were rarely detained. In 2014, the number of people detained surpassed 400,000. Removals of noncitizens rose from under 43,000 in 1993 to more than 430,000 in 2014. Funding for federal immigration enforcement is now 24 percent higher than funding for all other federal law enforcement agencies combined, and immigration enforcement agents constitute the largest armed federal force in the nation.
A New Phenomenon: Organized National Resistance at the Site
Traditionally, immigration practice in the United States has worked within—and in the direction of—networks of government power, oriented toward facilitating admission of noncitizens. As ballooning immigration policing resulted in skyrocketing detention and deportation numbers, immigration practice fell behind, leaving the majority of noncitizens unrepresented in immigration court. Deportations resulting from nonjudicial administrative processes, where attorney intervention was extremely rare, outpaced judge-ordered removals.
That is changing. Airport inspection sites and detention centers have become some of the places where immigration-inclusive policy and civil rights laws—and the individuals they are supposed to protect—have proven to be at greatest risk. In a development that doesn’t surprise anyone familiar with the social theories of Michel Foucault, those sites where government institutions most rigidly control movement and choice have given rise to resistance to these policies, institutions, and messages.
This is what is new in immigration law. Advocates for immigrant communities have been building a multilevel, multimedia, crowdsourcing advocacy structure that my colleague and I have dubbed the Big Immigration Law model. A counterpoint to the big immigration policing that has come to dominate American immigration policy, it consists of strategic, large-scale, localized, and nationalized networks opposed to enforcement practices that undermine immigration law.
What does an effective site of resistance look like? Our CARA Pro Bono Project case study (see the side bar) describes one. CARA arose in response to the mass confinement of children and mothers seeking asylum from persecution in the Northern Triangle countries of Honduras, El Salvador, and Nicaragua.
The Future of Advocacy?
Can this model work in other contexts? We may have an opportunity to see. Big Immigration Law has gone on the road. Civil rights advocates are adopting these strategies in response to the vertebrae of private detention facilities rising along the U.S. border with Mexico, and to the reinstitution of home and workplace raids by federal immigration agents. The Innovation Law Lab, in collaboration with Causa and dozens of civil rights advocates, is constructing the infrastructure for an immigrant-inclusive Oregon. Lewis & Clark students, along with my colleagues and I, are providing inspiration and support.
The Trump Administration’s “new” ideas about how to detain and deport? That’s just old news in a bigger font. The real legacy of this president—whether he likes it or not—will be the construction of one of the largest and most effective civil rights networks in modern times.